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Brown v. Heitman

Court of Appeals of Ohio, Third District, Logan

May 30, 2017

TIFFANY BROWN, DECEASED, PLAINTIFF-APPELLEE,
v.
BRIAN D. HEITMAN, DEFENDANT-APPELLEE. LAWRENCE BROWN - THIRD-PARTY INTERVENER-APPELLANT

         Appeal from Logan County Common Pleas Court Juvenile Division Trial Court No. 08-AD-090

          Miranda A. Warren for Appellant

          Sheila E. Minnich for Appellees, Julie Taylor and Daniel Heitman.

          OPINION

          ZIMMERMAN, J.

         {¶1} Third Party Intervener-appellant, Lawrence Brown ("Larry") brings this appeal from the November 4, 2016 judgment entry of the Logan County Common Pleas Court, Juvenile Division, granting Third Party Interveners-appellees, Julie Taylor ("Julie") and Daniel Heitman ("Dan"), grandparent visitation with the minor children in this case, Gage ("Gage") and Gavyn ("Gavyn") Heitman.

         Facts and Procedural History

         {¶2} Gage and Gavyn Heitman are the sons of Tiffany Brown ("Tiffany") and Brian Heitman ("Brian"). Tiffany and Brian were never married. Larry Brown and Deb Neeley, the maternal grandparents, are Tiffany's parents. Brian's parents, the paternal grandparents, are Julie and Dan.

         {¶3} On February 11, 2011, Tiffany was murdered. Prior to her death, Tiffany was the primary caregiver of Gage and Gavyn. However, both Julie and Dan often watched Gage and Gavyn on the weekends while Tiffany worked. (Tr. pg. 6, 32). It is noteworthy that while Gage and Gavyn were young, Brian had a significant drug problem and was not a part of their lives. Ultimately, Brian was determined to be an unfit parent by the trial court on September 14, 2011. (Doc. 63).

         {¶4} After Tiffany's death, Larry and his wife, Jill Brown ("Jill"), filed for Legal Custody of Gage and Gavyn in the trial court on March of 2011. (Doc. 34). On September 14, 2011, the trial court filed its judgment entry naming Larry and Jill the residential parents and legal custodians of Gage and Gavyn. (Doc. 63). The entry was silent as to visitation of the boys with any relative, but Larry and Jill permitted Julie and Dan (in addition to other family members) visitation on alternating weekends from Friday to Sunday. However, Larry and Jill did not provide visitation to Brian because of his drug problems.

         {¶5} In February, 2014, after Brian was released from a drug rehabilitation program, Larry and Jill decreased the weekend visitation between the boys and family members to just one overnight visit per weekend. This was due, in part, to the boys' increasingly busy schedule. (Tr. pg. 69).

         {¶6} Because of the decrease in visitation, Julie and Dan filed a motion to intervene as parties in the boys' legal custody case on August 26, 2014. The trial court granted their motion on September 15, 2014. Contemporaneous with the intervention request, Julie and Dan also filed a motion for temporary visitation (of Gage and Gavyn) along with a motion for grandparent visitation.

         {¶7} On January 29, 2015, the magistrate filed a Magistrate's Order appointing attorney Elizabeth Mosser as the guardian-ad-litem ("GAL") in the case. (Doc. 94). Ms. Mosser filed her report with the trial court on March 18, 2015. (Doc. 103).

         {¶8} On November 5, 2015, a hearing on the visitation motions occurred before the trial court's magistrate. Testimony was received from the parties, the boys' counselor, and the GAL.

         {¶9} The magistrate found that Gage and Gavyn had adjusted well to living with Larry and Jill; were doing well in school; and were involved in a variety of activities. The magistrate further found that Gage and Gavyn's father, Brian, had a serious drug addiction and had not been a "consistent or reliable" person in their lives. Moreover, the magistrate found that the paternal grandparents, Julie and Dan, had been a consistent presence in the Gage and Gavyn's life, especially since the death of their mother. The magistrate further found Julie was instrumental in facilitating the boys' relationship with their half-siblings who resided in Kentucky. (Doc. 143).

         {¶10} The magistrate concluded that it was important for Gage and Gavyn to continue to nurture a relationship with their paternal grandparents as well as their half-siblings and recommended visitation be awarded to Julie and Dan, which was in contradiction to the recommendation of the GAL.

         {¶11} Both parties objected to the magistrate's decision. Larry and Jill argued the magistrate erred in granting the paternal grandparents motion to intervene and by granting the paternal grandparents visitation with the boys. (Doc. 154). Julie and Dan argued the Magistrate gave undue weight to Larry and Jill's wishes which resulted in reduced visitation for the paternal grandparents. (Doc. 162).

         {¶12} On September 8, 2016, the trial court overruled all objections to the magistrate's decision, finding the magistrate's decision to be "reasonable and appropriate and without error" and adopted its findings and recommendations. (Doc. 164).

         {¶13} On November 4, 2016, the trial court filed its judgment entry granting grandparent visitation to Julie and Dan. Julie and Dan were each granted visitation one time per month (amounting to twice a month visitation) from Saturday at 10:00 a.m. to Sunday at 6:00 p.m. Both also received summer visitation of one week each and holiday visitation in accordance with the Logan County Standard Rule for non-residential parents, to split as they mutually agreed.

         {¶14} Larry filed his notice of appeal on December 1, 2016 raising the following four assignments of error for our review.

         ASSIGNMENT OF ERROR NO. I

IT WAS AN ABUSE OF DISCRETION WHEN THE TRIAL COURT FAILED TO CONDUCT AN INDEPENDENT DE NOVO REVIEW OF THE MAGISTRATES [SIC] DECISION

         ASSIGNMENT OF ERROR NO. II

IT WAS AN ABUSE OF DISCRETION AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN THE TRIAL COURT UPHELD THE MAGISTRATES [SIC] DECISION GRANTING COURT ORDERED GRANDPARENT VISITATION

         ASSIGNMENT OF ERROR NO. III

IT WAS AN ABUSE OF DISCRETION AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN THE TRIAL COURT WENT AGAINST THE RECOMMENDATION OF THE GUARDIAN AD LITEM

         ASSIGNMENT ...


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